Between a Rock, and Harry's Place

"History repeats itself. That's the trouble with history." Clarence Darrow (Henry Fonda), IBM Presents Clarence Darrow, 1974.

It has certainly been an historic...or, is it a historic...few months. In an historic... In a very historic era, we have seen, among other things, a pandemic leading courts to brush the cobwebs from a case one hundred and fifteen years old to approve of and justify the first peacetime, long-term, shelter-in-place orders of healthy people in, well, in anybody's memory.

Then George Floyd died at the hands of a Minneapolis police officer in clear view of three other officers and a street full of people. The ensuing unrest led some legislatures - Colorado's being one of them - to consider banning the affirmative defense of Qualified Immunity for police officers.

I handled at some length what qualified immunity is in the post Headlines, Not Solutions. There is no real need to do that here. But, the irony of the situation that it places cops in is too ironic to ignore. Let me set the scene.

You and a cover officer are dispatched to "Harry's Place" restaurant on a report that the owner, in violation of your state's shelter in place law, has thrown open their doors and is doing business. The Governor has declared a state of emergency, the health department has issued their finding closing all restaurants; your chief, your division chief, your commander, your sergeant and your legal advisor all assure you that every executive order issued by the Governor is valid. They toss around some case law, just so you know they aren't pulling this out of their asses. Your sergeant gets you on the phone and asks you to stand by while the Health Inspector cites the owner for violation of Title Blah blah blah. Let's stipulate that every one of those officials - on that fateful day - has correctly stated the law.

You aren't so sure. You've read a bunch of stuff in cop groups on Facebook, watched some YouTube videos and interacted with senior officers who think all of this is, frankly, buuullshit. Things are getting better, there is talk about a phased opening in a week or two and some courts around the country are nibbling around the edges of finding exceptions to the 1905 Supreme Court case your command staff says is valid. Against your better judgment, you go.

This isn't Sultans of Swing. Harry does mind, he minds a great deal. There are words, an argument. You take Harry by the arm (which he also minds a great deal) and escort him out to your car, away from the customers who are beginning to ask - politely, at least at first - just what in the fuck you think you are doing. You watch as the germ geek gives Harry his summons, you politely tell Harry to have a nice day...

And, six months later you show up in court to testify that you did, indeed, witness countless persons consuming unknown alcoholic beverages and assorted food items, apparently served by employee or employees of Harry. Only, there is no court, and the judge isn't going to look at the 27 8X10 glossy pictures you took proving Harry's was open. The court dismisses the ticket on the grounds that the "emergency" as defined in the governor's declaration had passed. The law Harry was summoned for was invalid. Not to worry, your legal advisor says soothingly. You followed the law as it stood six months ago.

Only, your state has eliminated qualified immunity as an affirmative defense. The fact that your participation in citing Harry had not been "clearly established" as a violation of his rights doesn't matter anymore. You detained Harry by involuntarily escorting him to your car - he was not free to go - without probable cause because the law you relied on was unconstitutional. You are not just subject to lawsuit, but it will have to go to the jury because it turns on matters of fact, not law. Even the reasonableness of your conduct doesn't matter. What a reasonable officer should have known doesn't matter because the whole concept was tossed in the shitter up on Capital Hill. You could lose. Everything. Including Fasha, your dog.

As if that isn't bad enough, the burden of proof in civil court is "preponderance of evidence." The definition of preponderance is: evidence which is more credible and convincing than that presented by the other party or which shows that the fact to be proven is more probable than not. Isn't that a happy thought?

 

So, guess what happens, State of Colorado, when the next governor-defined state of emergency declaration happens? It won't? See above. 

Any reasonable, rational officer will tell their chain to fuck off and take their letter of reprimand for inviting the Chief to do it herself.

Ironic, don't you think?